Top Constitutional Scholar Sides With Governors on Authority to Reopen States

By Brandon Vogel

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Any doubts about who has the authority to reopen the economy were laid succinctly to rest during a recent CLE Webinar.

One of the nation’s top constitutional law scholars, Erwin Chemerinsky, dean of Berkeley Law, spoke on the reopening of the economy and civil liberties in a pandemic during “Who Has the Constitutional Authority to ‘Reopen’ the Country’s Economy in Light of the COVID-19 Health Crisis.”

He discussed the broad government power to stop the spread of communicable disease throughout history as well as landmark cases that upheld the power of state governments.

Simply wrong

In the wake of the coronavirus pandemic, President Trump tweeted on April 13 that the decision to reopen states was up to the president “and for many good reasons.” Three days prior, he told Peter Alexander during his press briefing, “The states can do things if they want; I can override it if I want.”

“President Trump is simply wrong here,” Chemerinsky said.

He explained that the federal government does not have the authority to override a state.

“The president can act only if there is constitutional authority,” Chemerinsky said. “There is no constitutional provision that orders that businesses be opened. There is no general emergency power of the president.”

Under the Public Health Act, 42 U.S.C. 264, the surgeon general, with the approval of the secretary, is authorized to enforce such regulations that in his judgment are necessary to prevent the introduction, transmission or spread of communicable diseases from foreign countries into the United States or possessions or from one state or possession into another. Chemerinsky noted that does not authorize the federal government to reopen businesses.

Chemerinsky said that the public Health Act has a provision about preemption. If a state orders closure, there is no authority of the federal government to preempt that.

“That is the power of the state governments,” Chemerinsky said. “This is not a place where the law is ambiguous. It is quite clear.”

It is unequivocal he said that states have the power to stop the spread of communicable diseases. The 1926 case of Oregon-Washington R. & Nav. Co. v. Washington upheld, “In the absence of any action taken by Congress on the subject-matter, it is well settled that a state, in the exercise of its police power, may establish quarantines against human beings, or animals, or plants, the coming in of which may expose the inhabitants, or the stock, or the trees, plants, or growing crops, to disease, injury, or destruction thereby, and this in spite of the fact that such quarantines necessarily affect interstate commerce.”

Cases of interest

Chemerinsky cited the landmark Supreme Court case of Jacobson v. Massachusetts. “It is within the police power of a State to enact a compulsory vaccination law, and it is for the legislature, and not for the courts, to determine,” the Supreme Court decided, after a pastor refused a vaccine for smallpox.

Chemerinsky also noted the 2016 case of Hickox v. Christie which stated, “Since as long ago as 1799, however, federal legislation has mandated federal noninterference and cooperation with the states’ execution of their quarantine laws.”

Other cases such as Prince v. Massachusetts upheld that the “right to practice religion freely does not include liberty to expose the community…to communicable disease.”

What’s next

As for the upcoming election in November 2020, Chemerinsky answered, “The president has no authority to suspend the election.”

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